Guarding National Security Over Civil Rights

OP-ED

February 01, 2013|By GLENN SULMASY | OP-ED, The Hartford Courant

The delicate balance between promoting national security and civil rights is always difficult — in any society. With the advent of the 24-hour news media, and the growth of the Internet, Twitter, Facebook, LinkedIn and other social networking sites, achieving a balance is even more critical. The war on al-Qaida has created additional problems for governments, particularly the U.S.

Holding trials for the prisoners at the detention center within the U.S. Naval base at Guantanamo Bay, Cuba, has been the test case for this balance over the past decade. Now with the Obama administration's military commissions in the pre-trial motions phase of the trial of Khalid Sheik Mohammed, the accused mastermind of the Sept. 11, 2001, attacks and his four co-defendants, the rule of law, access to information and promoting the security of U.S. citizens are all on a collision course.

This past week, defense attorneys for the five accused 9/11 terrorists pressed for the public release of all information related to the CIA's interrogation program and to release specific details about the so-called "black sites" in open court. Such outrageous requests by the defense team of Khalid Sheik Mohammed, Ali Abdul Aziz Ali and three others is reckless. The potential damage to national security as a result of such disclosures is tremendous, and puts more American lives at risk.

The defense team, aware of such damage, still pushed for the documents to be presented as unclassified in open court. Clearly, this is where national security, if it ever must, trumps civil liberties when balancing the two.

The discussion of whether enhanced interrogation techniques is, or was, appropriate is legitimate. The nation needs to truly examine what took place, how it took place and how best to ensure the U.S. does not, and perhaps is not perceived as, crossing the line of enhanced interrogation into torture.

The debate is real and critical to the next decade of this generational conflict. But this study, or "discovery," should not be done as a lawyer's fishing expedition or publicity stunt. It needs to be done in a professional, mature, and secure fashion. The ramifications of disclosing certain alleged actions by U.S. CIA or military members could prove tremendously damaging to U.S. stature and to the individuals allegedly involved.

In the five 9/11 cases, the reality is that none of the information used to bring charges was a result of anything close to torture — or even enhanced interrogation. Chief prosecutor Brig. Gen. Mark Martins has made clear that "no information in the government's charges against the five accused was gained via mistreatment or torture of detainees." The defense has much to explain to the military commission about the relevance of such documentation when raising these pre-trial motions in court.

Additionally, seeking to make public the alleged "black sites" where enhanced interrogation took place, the operations of these sites and the techniques employed on detainees while there, can be damaging not only to U.S. citizens, and our covert operations, but to U.S. relations with other nations. The defense wants to reveal in open court the specific nations involved, exact locations of buildings at the sites and all information on interrogations drafted during the George W. Bush administration. These requests again, while of interest to a robust defense of their clients, needs to remain classified for myriad reasons. To do otherwise is simply irresponsible. The presiding military judge, Col. James Pohl of the US Army, has to rule on such irresponsible discovery requests prior to the initiation of the capital case against the five alleged masterminds of the 9/11 attacks.

Amazing to think 12 years after the attacks, we still haven't gotten this right. Uncomfortable as it is, in an armed conflict, sometimes national security trumps civil rights.

Glenn Sulmasy is a professor of law at the U.S. Coast Guard Academy and Homeland Security and National Security Law Fellow at the Center for National Policy. He is the author of "The National Security Court System – A Natural Evolution of Justice in an Age of Terror." The view expressed are his own.